EXHIBIT 10.3(b)
EXECUTIVE OFFICER NON-QUALIFIED STOCK OPTION AGREEMENT
CONCURRENT COMPUTER CORPORATION (the "Company") hereby grants, effective xx,
1997 (the "Effective Date"), to First Last (the "Optionee") a
Non-Qualified Stock Option to purchase a maximum of xx shares of its Common
Stock, $0.01 par value, at a price of $xx per share subject to the following:
1. Relationship to Plan. This option is granted pursuant to the Concurrent
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Computer Corporation 1991 Stock Option Plan, a copy of which is attached as
Exhibit A hereto (the "Plan"), and is in all respects subject to the terms,
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conditions and definitions of the Plan. The Optionee hereby accepts this
option subject to all the terms and provisions of the Plan (including without
limitation provisions related to non-transferability and termination of the
option and adjustment of the number of shares subject to this option and the
exercise price therefor). The Optionee further agrees that all decisions under
and interpretations of the Plan by the Board of Directors of the Company or
the Stock Award Committee (the "Committee") established under the Plan and as
from time to time constituted shall be final, binding and conclusive upon the
Optionee and his heirs.
2. Exercisability. Subject to the provisions of Paragraph 6 below, this
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option shall be exercisable from time to time for that number of shares in
which the option holder has vested less any shares with respect to which this
option has been previously exercised. This option shall vest in full on the
third anniversary of the Effective Date. Notwithstanding the foregoing, in
the event of a Change of Control of the Company (as defined in the Plan as
modified by Paragraph 6 hereof) after the Effective Date to the extent not
vested this option shall immediately vest as to an additional twelve months
and shall remain exercisable for the 12 months following the Change of Control
to the extent vested during such period (i.e., to the extent vested prior to
the Change of Control, plus the additional 12 months of vesting, plus any
additional monthly vesting during the 12 month period) without regard to any
other limits set forth in the Plan. Thereafter, this option shall be
exercisable subject to the limits set forth in the Plan.
3. Time of Exercise. To the extent it has become exercisable, this option
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shall remain exercisable (except as otherwise provided herein or in the Plan)
in full or in part until it has been exercised as to all shares subject hereto
or the tenth anniversary of the Effective Date, whichever occurs first.
4. Methods of Exercise. This option shall be exercisable by a written
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notice in the form attached hereto. The notice shall be accompanied by payment
in full for the number of shares exercised. Payment shall be made by (i) cash,
(ii) check, (iii) delivery and assignment to the Company of shares of Company
stock having a fair market value equal to the option price, or (iv) by a
combination of (i), (ii), and (iii). Upon such payment the Company will
thereafter deliver or cause to be delivered to the Optionee (or other
individual or individuals), at the office of the Company, a certificate or
certificates for the number of shares with respect to which this option is
being exercised, registered in the name or names of the individual or
individuals exercising the option; provided, however, that if any law or
regulation or order of the Securities and Exchange Commission or other body
having jurisdiction shall require the Company or Optionee (or other individual
or individuals) to take any action in connection with the shares then being
purchased, the delivery of the certificate or certificates for such shares
shall be delayed for the period necessary to take and complete such action.
5. Withholding Taxes; Delivery of Shares. The Company's obligation to
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deliver shares of Common Stock upon exercise of this option in whole or in
part, shall be subject to the Optionee's satisfaction of all applicable
federal, state and local income and employment tax withholding obligations.
6. Change of Control. The provisions of Section 13 of the Plan
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notwithstanding, the rights of the Optionee in the event of a Change of
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Control of the Company are determined by the events following the Change of
Control as more explicitly set forth below. Change of Control shall have the
meaning set forth in the Plan with clause (a) of such definition hereby
modified pursuant to the Plan to limit a Change of Control to those instances
where a Person becomes after the Effective Date the Beneficial Owner, directly
or indirectly, of more than 25% of the Voting Stock of the Company and with
clause (b) modified to delete the provisions relating to the disposition of a
business of the Company for which the Participant's services are principally
performed thereby eliminating any trigger in respect of a disposition of a
subsidiary or branch of the Company. Basically, the Change of Control acts as
the initial trigger of a two trigger requirement to accelerate the Optionee's
rights to exercise the option. The second trigger is the first to occur of
three events: (1) involuntary termination without cause (such term used here
and hereinafter to have the meaning set forth in Section 10(h) of the Plan),
(2) the Company ceasing to be a "public" company, or (3) a successor company
succeeding to all or substantially all the assets of the Company (whether by
sale, merger or otherwise). Generally, if event (1) occurs the option becomes
fully vested and exercisable in full to the extent not previously exercised
over the remaining term of the option, and if event (2) or (3) occurs each
director (i.e., member of the Board of Directors) and employee Optionee is
"cashed out" and paid the "spread" on the shares not previously exercised
(i.e., the difference between the fair market value of a share of Common Stock
and the stock option exercise price times the number of shares not previously
exercised).
The provisions governing the rights of the Optionee in the event of a Change
of Control followed by a second trigger are set forth below.
In the event of a Change of Control of the Company, the following provisions
shall apply:
(a) If, prior to the applicability of (b) (the going private provisions) or
(c) (the successor obligation provisions) below, the Optionee's services for
the Company or any Affiliate of the Company are terminated involuntarily and
without cause (including any constructive termination pursuant to the terms of
any employment agreement from time to time in effect between the Company or
such successor and the Optionee), either in connection with or following the
Change of Control, this option shall become immediately exercisable in full
upon such termination of service and shall thereafter be exercisable without
regard to the provisions of such clause (i.e., it shall remain exercisable for
the term of this option).
(b) If the Company or such successor following the Change of Control is not
subject to the reporting requirements of Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 (i.e., ceases to be a "public company") or if
the Company or such successor immediately following the Change of Control is a
public company but any time thereafter ceases to be a public company, the
Company or such successor, in full satisfaction of its obligations hereunder,
shall pay each director and employee Optionee and any Optionee involuntarily
terminated without cause in connection with such going private transaction in
cash within five business days after the date on which it ceases to be a
public company the difference between (i) the value of the aggregate number of
shares subject to this option and not previously exercised and (ii) the option
price payable for such aggregate number of shares.
(c) If the Company is not the surviving entity in a transaction involving the
transfer of all or substantially all its assets and business (whether by sale,
merger or otherwise), then the Company or such successor, in full satisfaction
of its obligation hereunder, shall pay each director and employee Optionee and
any Optionee involuntarily terminated without cause in connection with such
transaction in cash within five business days after the date on which such a
transaction occurs the difference between (i) the value of the aggregate
number of shares subject to this option and not previously exercised and (ii)
the option price payable for such aggregate number of shares.
(d) For purposes of (b)(i) and (c) above, the value of a share of the Company
shall be equal to the average closing sales price (or, in the absence thereof,
the average ask and bid prices) of such shares for the last 30 days on which
trades of such shares were publicly reported.
(e) In any circumstances not described in (a), (b) or (c) above, the terms of
the Plan and of this Agreement other than this Paragraph 6 shall apply.
Without limiting in any way the provisions of the last sentence of Paragraph 1
above, any dispute or controversy under or in connection with this Paragraph 6
shall be settled exclusively by arbitration in New Jersey by one arbitrator in
accordance with the rules of the American Arbitration Association then in
effect. The arbitrator's award may include the manner in which fees of
counsel and other expenses in connection with the dispute or controversy are
to be borne. Judgment may be entered upon the arbitrator's award in any court
having jurisdiction.
7. Affiliate. The definition of Affiliate set forth at Section 3a of the
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Plan is hereby clarified by adding the following sentence to the end of the
definition: The Committee hereby designates all entities in which the Company
owns, directly or indirectly, more than 50% of the voting stock of such
entity, Affiliates of the Company. An entity shall cease to be an Affiliate
where the Company owns, directly or indirectly, less than 50% of the voting
stock of such entity, unless otherwise determined by the Committee at the time
of the change in the Company's ownership interest in such entity.
8. General. This Agreement shall be construed as a contract under seal in
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accordance with the laws of the State of Delaware. It shall bind and, subject
to the terms of the Plan, benefit the parties and their respective successors,
assigns and legal representatives.
IN WITNESS WHEREOF, the Company and the Optionee have caused this Agreement to
be executed as of the date first above written.
CONCURRENT COMPUTER CORPORATION
By: /s/Xxxxx X. Xxxx
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Optionee Xxxxx X. Xxxx
Vice President
General Counsel and Secretary
